On the morning of Friday, April 21, the Justices met to vote on the outcome of the case.

Pete Wright attended oral argument and took notes of the questions asked by the Justices. In this article, Pete shares his notes, observations and impressions of this case.

The Issue

The issue is whether prevailing parents in a special education due process hearing can be reimbursed for their expert witness fees as a part of the costs.

The statute reads, “the court, in its discretion, may award reasonable attorneys’ fees as part of the costs to a prevailing party who is the parent of a child with a disability . . .” (See 20 USC §1415(i)(3)(B) in Wrightslaw: Special Education Law, 2nd Edition, page 116)

Legislative History

Statute Amended to Include Attorneys Fees

In 1986, the special education statute was amended to authorize reimbursement for attorneys’ fees incurred by parents. For fifteen years after this amendment, Courts routinely interpreted the amendment as also authorizing the reimbursement of expert witness fees. Over time, some Courts began to question the rule. Eventually, a split developed among the Circuit Courts of Appeal.

Expert Witness Fees

The legislative history surrounding the 1986 amendment established that the Joint Statement of the House and Senate issued in conjunction with the 1986 amendment identified “as compensable expenses expert witness fees, costs of tests and evaluations, and all other litigation costs and expenses reasonably expended by the parents, which plainly includes consultant fees. Finally courts have routinely reimbursed parent for the costs of non-testifying experts.” (Murphy Brief, page 19)

The school district argued that the phrase “reasonable attorneys’ fees as part of the costs” is clear and unambiguous and does not include expert witness fees or consultant fees.

If a statute is unclear and is ambiguous, the U. S. Supreme Court may look to legislative intent for guidance and clarification. If the statute is not ambiguous, then the Court is supposed to look at the plain language in the statute.

The parents argued that when the statute was amended in 1986 to include the phrase “attorneys’ fees and costs”, the phrase “costs” included expert witness fees and also the costs of consultants who may not be called as witnesses.
The school district argued that the plain language of “costs” only means such items as photocopy fees.

Questions by the Justices

The questions by the Justices focused on these issues. Many questions posed were not questions, but were the Justice's opinions phrased as questions.

For example, Justice Kennedy asked, “Haven’t we previously said that Conference Committee Reports are of no value to us?”

Justice Kennedy responded, “But isn’t the gravamen of your argument that the phrase is unambiguous?”

Justice Stevens jumped in, saying, “At that time, in 1986, wasn’t it well-settled that the Courts would look at legislative intent?”

Justice Scalia countered, “But you don’t look at legislative history if it is not ambiguous.”

Later, Chief Justice Roberts said, “I understand that expert witness fees are often more expensive that attorneys’ fees. What prevented Congress from putting it in the statute [at that time]?”

Parent attorney David Vladeck responded, “Given the context and use of the word “costs” at that time, Congress thought that they put it in ... the statute must be looked at at the time of conception ...”

Justice Souter said “Doesn’t all this [discussion] mean that the statute is ambiguous, and given that, we must look at the legislative history?”

Chief Justice Roberts jumped in. “But if it is ambiguous, what about the restrictive nature of spending clause legislation [that statutes must be narrowly construed]?”

Justice Kennedy responded, “Couldn’t this case be the Magna Carta to establish a whole new breed of experts?” [Laughter]

After listening to oral argument, it was my sense that the Supreme Court will decide that the word “costs” does not include reimbursement for expert witness fees.

The vote on Friday, April 21, 2006, was probably 5-4 or 6-3, with the majority in favor of the school district.

Justices Stevens, Souter and Breyer appeared to align with the parents’ position. At one point, Justice Ginsburg seemed to align with the school district. Her subsequent questions seemed to favor the parents.

The Decision

After the vote on April 21, the Justices will decide who will write the majority opinion and who will write the dissent. Drafts will be written and distributed back and forth among the Justices. Eventually, consensus will be reached and the decision will be published.

I expect the decision to be published before this term ends in June, 2006.NOTE: Parent attorneys who attended oral argument included Matt Bogin, Michael Eig, Siran Falders, Elizabeth Greczek, Bill Hurd, Haylie Iseman, and Wayne Steedman.